Commonwealth v. Asher, 31 N.E.3d 1055

Background

On Nov. 27, 2009, Springfield officers stopped a car; passenger Melvin Jones was subjected to a patfrisk after an officer felt a hard object in his pocket. No weapon was found; the object was later revealed to be drugs.
Officer Michael Sedergren and Officer Theodore Truoiolo initially checked Jones; Jeffrey Asher (defendant), a responding officer, joined and repeatedly struck Jones with a flashlight while Jones was bent over the hood of a cruiser and later on the ground.
Jones suffered serious facial and eye injuries, including fractures and permanent vision loss in one eye; bystander video captured much of the encounter.
Defendant was charged with assault and battery by means of a dangerous weapon and simple assault and battery; at trial he asserted self-defense and defense of others (and had earlier filed, then disclaimed, a defense based on use of force to effect an arrest).
The trial judge declined to give the jury an instruction that would have explicitly stated a police officer may use necessary and reasonable force in performing official duties and included a supplemental model instruction requiring retreat before using force; the jury convicted the defendant on both counts.
The Supreme Judicial Court held the instructions were legally flawed (failure to acknowledge officer status; erroneous duty-to-retreat language) but found the errors harmless given the evidence of excessive force and strength of the Commonwealth’s case.

Issues

Issue	Commonwealth's Argument	Asher's Argument	Held
Whether the judge erred in not instructing that a police officer may use force reasonably necessary in carrying out official duties	That the proposed instruction was unnecessary and could confuse the jury because defense had disavowed an arrest-based theory	That jury should be told officer status matters and that an officer may use necessary and reasonable force in official duties	Court: Declining to give proposed model instruction was debatable but overall instruction should have acknowledged officer status; omission was error but not prejudicial
Whether including a duty-to-retreat instruction was appropriate for an on-duty officer	Duty-to-retreat language follows the model self-defense instruction and should be given	Duty-to-retreat is inappropriate for on-duty officers who must protect public and fellow officers; should have been tailored to officer’s available options	Court: Duty-to-retreat instruction was erroneous for an on-duty officer, but error was harmless here
Whether the instruction errors were prejudicial requiring a new trial	Errors could have influenced jury unless evidence overwhelmingly negates defense	Instructional errors deprived jury of proper framework for evaluating officer’s reasonableness	Court: Errors not prejudicial given video, testimony, severity of injuries, and implausibility of claimed threat—no new trial
Whether the defense’s pretrial disavowal of arrest-based force theory affected fairness	Commonwealth argued it did—it relied on disavowal and did not prepare rebuttal expert	Defense argued it was pursuing a Terry-stop/self-defense theory and could rely on training/continuum evidence	Court: Defense’s prior disavowal made giving the arrest-centered instruction unfair and potentially misleading to jury; this supported judge’s rejection of that specific instruction

Key Cases Cited

Commonwealth v. Cruz, 445 Mass. 589 (preservations and prejudicial error standard in jury-charge review)
Commonwealth v. Moreira, 388 Mass. 596 (civilian may use force against officer using excessive force)
Commonwealth v. Martin, 369 Mass. 640 (officer’s use of force limits in arrest contexts)
Commonwealth v. Graham, 62 Mass. App. Ct. 642 (limits on resisting arrest and when arrestee may defend against excessive force)
Commonwealth v. Young, 326 Mass. 597 (reasonableness of officer’s use of force is proper question for trier of fact)
Commonwealth v. Niemic, 427 Mass. 718 (review of jury instructions as a whole)
Commonwealth v. Flebotte, 417 Mass. 348 (standard for prejudicial error requiring reversal)
Julian v. Randazzo, 380 Mass. 391 (limits on deadly force to effect arrest discussed)
Commonwealth v. Klein, 372 Mass. 823 (limitations on deadly-force-based citizen arrests and related instructions)
Powers v. Sturtevant, 199 Mass. 265 (historical statement that officer may use force reasonably necessary to overcome resistance)